The London Borough of Hammersmith & Fulham v Carty

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The repairing obligations imposed on the landlord of a “dwelling-house” by s.11(1) of the Landlord and Tenant Act 1985 are well known: the landlord must keep in repair the structure and exterior of the dwelling-house, as well as the installations within it.

Where the dwelling-house is a flat situated in a building which the landlord also owns, then this obligation is extended to cover the common parts of the building and the installations which directly serve the dwelling-house (s.11 (1A)).

What is less well known however is that this obligation is not absolute, its is qualified. S.11(2) of the Act provides:

(2) The covenant implied by subsection (1) (“the lessor's repairing covenant”) shall not be construed as requiring the lessor—
(a) to carry out works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner, or would be so liable but for an express covenant on his part,
(b) to rebuild or reinstate the premises in the case of destruction or damage by fire, or by tempest, flood or other inevitable accident, or
(c) to keep in repair or maintain anything which the lessee is entitled to remove from the dwelling-house.

It is ss.(2)(b) that is the subject of this article.

Ms Carty was the secure tenant of a flat. The London Borough of Hammersmith and Fulham were her landlords. The tenancy contained repairing provisions, but these were expressed to be a summary of the s.11 obligations and the agreement provided in terms that the landlord did not "…accept any wider obligations” than those imposed by s.11.

In April 2010 Ms Carty’s next door neighbour (also a LBHF tenant) set fire to his flat. He was subsequently arrested for arson. The fire gutted his flat, and did considerable damage to the walls, ceiling and electricals in the common areas outside his and Ms Carty’s flat. Apart from smoke damage, there was very little damage actually inside Ms Carty’s flat.

As a result of the fire all utilities to the flat were cut off. However, the gas and electricity were restored within days, and temporary lighting installed in the corridor leading to the flat some weeks later. Ms Carty moved out of the flat and stopped paying her rent. LBHF maintained that the flat was available for her to move back into. Ms Carty disagreed and refused to move back, principally because LBHF had failed to clean or replace an air vent that had been damaged by smoke. She also complained about the lingering smell of smoke. Eventually, LBHF lost patience and brought proceedings for possession on the basis of rent arrears. Ms Carty counterclaimed for disrepair.

At trial, whilst there were factual issues around what was repaired when and whether the problems with the vent were disrepair or not, the landlord primarily relied on the provisions of s.11(2)(b), set out above. It was the landlord’s case that as the damage to the common parts (which clearly was disrepair) had been caused by fire, it was not liable to Ms Carty by virtue of the provisions of that sub-section. The tenancy itself specifically restricted the landlord’s obligations to those under the Act, so Ms Carty could get no assistance from the agreement.

Sitting at the West London County Court on 12th July 2012 DJ Nicholson agreed. He held that since all the damage had been caused by fire (which had not itself been caused by actionable disrepair), there was no obligation on LBHF to “rebuild” or “reinstate”. Therefore, even to the extent that there was any delay on the part of LBHF this did not sound in damages. Ms Carty did not appeal.

This decision, though only at first instance, will have far reaching consequences not least in the more common case of water penetration between flats. In a case where the landlord is not primarily liable for the escape of the water in the first place, the tenant always argues that the landlord is now aware of the damage to his walls, ceilings, electrics etc and that he (the landlord) must fix them. This argument has, historically, been accepted but in the light of this decision is probably wrong. The damage is “flood” damage and the landlord’s liability to the tenant to “rebuild” or “reinstate” is excluded by ss.(2)(b). Equally therefore, any failure by the landlord to act promptly cannot sound in damages. Andy Lane represented the Landlord.